2020 MAIANI Impact of ECJ - Chapter 5

5
CJEU Citations in the Case Law of

the Swiss Federal Supreme Court
A Quantitative/Qualitative Analysis
Francesco Maiani*
A. Introduction
This chapter addresses the issue of how often, in what circumstances, and to what
effect the Swiss Federal Supreme Court (FSC) refers to the case law of the Court
of Justice of the European Union (CJEU) in interpreting domestic legislation and
international agreements.1
I first provide background information about Switzerland, its legal system, and
its judiciary (section B). In section C, I provide a concise account of the state of
relations between Switzerland and the EU, with a focus on the international obli-
gations and legislative policies that entail an approximation of Swiss law to EU law.
I then examine the practice of citing CJEU precedent by the Swiss Federal
Supreme Court.
In section D, I present the leading cases laying down the main doctrines of ‘euro-
compatible’ interpretation developed by the FSC over the past twenty years. I also
connect them to earlier and later judgments so as to show the evolutionary char-
acter of these doctrines.
This not only provides the reader with examples of ‘euro-compatible’ interpret-
ation in concrete cases, but also lays down the analytical groundwork allowing a
full understanding of the quantitative data presented in section E. This section ad-
dresses the frequency of references to CJEU case law, disaggregated by years and
by legal fields. It also goes in-depth on the legal rationale and impact of such ref-
erences, attempting an explanation connecting the statistical findings to the doc-
trinal elements presented in section D.
* Many thanks are due to Mélanie Chevalley and Ana Sijakovic-Kressner, PhD candidates, for their
precious research work. The chapter is dedicated to my dear friend and colleague Etienne Poltier, in
grateful acknowledgement of many stimulating conversations, and in hopes that it will provide a suit-
able excuse for more of the same.
1 The choice of examining only the case law of the FSC has been made on grounds of feasibility ex-
plained below in section E.1.
Francesco Maiani, CJEU Citations in the Case Law of the Swiss Federal Supreme Court In: The Impact of the European
Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020).
© The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0005.
Copyrighted Material, OUP 2020, Do Not Distribute

82 THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES
As we will see, citations of the CJEU in Swiss case law appear to be both more
frequent and more cogent than in other third states covered by the present book.
This does not appear to be due to the education and background of the judges, or
to their professional contacts with the CJEU. Admittedly, some of these factors
may play a role in the decision to refer—or not to refer—to CJEU precedents in
particular cases. However, it is argued that in a state where the influence of EU
law is so deep and pervasive, this is by far the main driver. It is not, therefore, a
matter of ‘influence of the CJEU’ per se. Far more than inter-judicial dialogue, it is
Swiss judges’ everyday office of applying the law that leads them to consider CJEU
precedent.
B. Background Information: Switzerland, Its Legal System,

Its Judges
1. The Swiss Confederation and its Constitution
Switzerland is a wealthy country of about 8 million inhabitants.2 It is located in

Central Europe between Italy, France, Germany, Austria, and Liechtenstein. Despite
its official name (the Swiss Confederation), since 1848 it has been a fully fledged fed-
eral state consisting of twenty-six cantons and a federal government seated in Bern.
Swiss federalism is particularly strong in international comparison: the can-
tons retain a large share of the aggregate state budget as well as wide-ranging com-
petences, for example in matters of taxation, public order, education, and public
health. Such strong federal traditions mirror a history of bottom-up state construc-
tion, as well as the enduring multicultural character of Swiss society. Indeed, on
the one hand, cantonal identities, traditions, and citizenship(s) still play a very im-
portant role in the everyday lives of the Swiss. On the other hand, Switzerland is
a multinational state partaking in three different European cultures. Its three full
official languages are German, French, and Italian. The majority of the inhabitants,
living in northern and eastern Switzerland, speak German, or cantonal varieties
thereof. The second-largest linguistic community is that of the French speakers
in the western Cantons. Italian is spoken in the southern Canton Ticino and is a
minority language in south-eastern Kanton Graubünden. In this same canton,
Romansh dialects are also spoken, and a standardized form of Romansh is recog-
nized as the fourth national language at federal level (though not as a full official
language).3
2 For a more detailed presentation of Switzerland and of its legal system, see Marc Thommen (ed),
Introduction to Swiss Law (University of Zurich 2018).

3 See Federal Constitution of Switzerland, adopted 18 April 1999 (last modified 1 January 2020), RS
no 101, Art 70 (Federal Constitution).

CJEU CITATIONS IN SWISS CASE LAW 83
Absent a Swiss ‘nation’ in an ethnic sense, Swiss-ness relates more to a (partly)

shared way of life and political-institutional culture centred on federalism, direct
democracy, and neutrality.4
As noted, each canton has its own constitution, legal system, institutions,
tax revenues, and budget. The supreme law of the land is, however, the Federal
Constitution, which was entirely recast in 1999 and has since undergone further
changes.
The Constitution lays down the key principles of the federal legal system, in-
cluding the principle of supremacy of federal law; it enumerates federal compe-
tences, as well as the basic guidelines for the policies to be founded thereon; and
it establishes the three branches of federal government: the bicameral Federal
Assembly (legislative), the Federal Council (executive), and the judiciary, namely
the Federal Supreme Court (FSC) seconded by three federal first- instance
courts: the Federal Administrative Court, the Federal Criminal Court, and the
more recent Federal Patent Court.
Swiss federalism is of the ‘cooperative’ (or ‘executive’) kind. Areas where the
design, financing, and execution of public policies and programmes fall exclu-
sively under federal or cantonal competences are rather the exception. In most
policy areas, competences are variously shared. Furthermore, federal laws and
policies are as a rule executed by the cantons under the supervision of the federal
administration.
In addition to federalism, the defining trait of Swiss political and constitutional
culture is, as observed, (semi-)direct democracy. It is worth noting that decision
making at all levels (communal, cantonal, federal) ordinarily happens through
mechanisms of representative democracy. The electoral body is, however, en-
trusted with the final say on many important decisions. Rules vary according to the
level of government. At federal level, voters must approve every amendment to the
Constitution (‘mandatory referendum’, with a double majority of people and can-
tons). A group of voters may also propose to the electoral body any such amend-
ments by ‘popular initiative’, with the sole substantive limitation that the proposed
bill must respect peremptory norms of international law (as opposed to ‘ordinary’
treaty law). Upon the request of a given number of voters, parliamentary laws also
undergo a referendum before they can enter into force (‘optional referendum’).
Important treaties are also subject to ‘mandatory’ or ‘optional’ referenda, as the
case may be. For instance, a hypothetical Treaty of Accession to the European
Union (EU) would have to be approved in a mandatory referendum, whereas any
treaty requiring modification of parliamentary legislation is subject to optional
referendum.
4 On Switzerland as ‘Willennation’, see Andreas Thier, ‘Legal History’ in Thommen (n 2) 41ff, 43.

The identity of the Swiss state is also defined by its foreign policy doctrines. The
most well known is neutrality. This should not be confused with isolationism. As a
relatively small state depending on international cooperation in a wide number of
areas, Switzerland has a very active foreign policy, and is naturally engaged in favour
of an international order based on the rule of law (as opposed to power politics). This
is all the truer in the economic sphere: the Swiss economy is strongly dependent on
foreign trade, investment, and workforce. A founding member of the World Trade
Organization (WTO), Switzerland actively pursues the development of a network
of treaties furthering economic integration. In this context, close relations with the
European Union (EU)—which is both an indispensable partner in a wide range of
policy areas, as well as by far the main economic partner of Switzerland—has cen-
tral importance.
This long-standing policy of openness and international engagement, which
dates back to the nineteenth century, has been challenged by the ascent of sov-
ereigntist political tendencies since the early 1990s. In 1993, the Swiss electorate
narrowly rejected entry into the European Economic Area (EEA). Since then, a
few popular initiatives have been approved that changed the Constitution in a
sense contrary to important treaties in force such as the European Convention on
Human Rights (ECHR), as well as key treaties concluded with the EU.5 The trend
is far from univocal, however. On other occasions, the electorate has clearly re-
jected sovereigntist initiatives in the name of preserving the country’s international
relations.6 Furthermore, even when the Constitution has been revised in a sense
opposing existing treaties, this has not modified the general course of Swiss foreign
policy, nor has it significantly affected implementation of the treaties concerned in
the domestic legal order (see section B.2 below).
2. The Swiss legal system
Swiss law is written law in the civil law tradition. Custom has a negligible role, and
judge-made law in the proper sense is only accepted as a means to fill in legisla-
tive lacunae as foreseen in Article 1 of the Swiss Civil Code. Judicial decisions are
binding on the parties and on lower courts in case they have been rendered on ap-
peal, but they do not set binding precedent for future cases.
5 See eg Federal Constitution, Art 121, paras 3–6, introduced by popular vote of 28 November 2010
following the initiative ‘For the Expulsion of Criminal Foreigners’ (2009) Federal Gazette (FF), 4571;
Federal Constitution, Art 121a, as modified by popular vote of 9 November 2014 following the initiative
‘Against Mass Immigration’ (2013) FF, 279.
6 See eg the initiative ‘International Agreements: Let the People Decide!’ (2012) rejected on 17
June. See also the so-called ‘Self-Determination Initiative’ (2018) rejected on 25 November 2020. All
the results of past referenda may be consulted at <www.bk.admin.ch/bk/fr/home/droits-politiques/
votatations-populaires.html> accessed 25 May 2020.

This is, of course, a rather formalistic description of the system. In actual prac-
tice, decisions of the FSC do set precedents on interpretation of the law, and there
are indeed a number of formal or informal rules surrounding the management
of case precedents. In particular, a distinction exists between ‘published’ and ‘un-
published’ judgments of the federal courts. The former are published in the offi-
cial reports and are selected by the courts themselves on the basis that they are
leading cases,7 whereas ‘unpublished’ judgments are only made available through
the general websites of the courts, and they carry less weight. Lower courts may de-
viate from FSC precedent, but at the risk of seeing their own judgments annulled.
Furthermore, the FSC only sets aside its own precedents when there are ‘important
reasons’ for doing so.8
The hierarchy of domestic law follows a rather ordinary pattern (see Figure 5.1).
Still, Swiss federal law is characterized by a peculiar principle enshrined in
Article 190 of the Constitution, whereby ‘The Federal Supreme Court and the
other judicial authorities apply the federal statutes and international law.’ On its
face, this provision states a truism, but its implication is the so-called ‘immunity
of federal statutes’: while federal statutes must in principle respect the Federal
Constitution, the FSC has no power to strike them down, or to refuse to apply them
on grounds that they are unconstitutional. In the terms of Article 190: Swiss courts
must ‘apply’ federal statutes even if they declare them unconstitutional. This is not
an exception to the hierarchy of norms. Rather, it has to do with the Swiss concep-
tion of the separation of powers: it is not up to the judge—or to any other body or
official—to make their views about the constitutionality of a rule prevail over those
of the legislator. De facto, however, the result is that in case of conflict, statutes take
Federal law
Constitution
Federal statutes
Orders and decrees
Agreements among cantons
Cantonal law
Fig 5.1 Switzerland: Hierarchy of domestic law

Source: Prepared by the author.
7 See Rules of the FSC, Classified Compilation of Federal law (Recueil systématique) 173.110.131
(RS), Art 58. Marc Thommen speaks of ‘de facto precedents’: Marc Thommen, ‘Swiss Legal System’ in
Thommen (n 2) 1ff, 33.
8 This is a well-established principle: see eg BGE 141 II 297, 5.5.1. When a Division of the FSC intends
to change the case law established by another Division, special procedural requirements apply: see the
Statute on the Federal Supreme Court, RS 173.110, Art 23.

precedence over the Constitution. This is an important, albeit unstated part of the
Swiss system of checks and balances. The electorate may well change the Constitution,
and at times they do so in unforeseen or radical ways. Nevertheless, full implemen-
tation of the amendments thus adopted requires the cooperation of the Swiss parlia-
ment, which has so far acted as a moderating force in the most extreme cases.9
Coming to international law, it is worth pointing out that Switzerland is a monist
system, and that Swiss judges recognize fairly broadly the direct effect of inter-
national provisions. Under Article 190 of the Constitution, international law bene-
fits from ‘immunity’ vis-à-vis the Constitution, just like federal statutes. In case of
conflict with federal statutes, the Supreme Court has ruled that international law
also takes precedence.10 There are exceptions and nuances, as well as growing con-
testation of the principle.11 Still, according to the prevailing opinion in FSC case
law, international law ultimately takes precedence over all domestic legislation.12
This privileged status has so far shielded agreements concluded by Switzerland
with the EU from the effects of recent popular votes to a very large extent, and has
ensured their continuing implementation.
3. The Swiss judicial system
There are twenty-six cantonal judiciaries in Switzerland (each topped by a cantonal

supreme court), plus a federal judiciary. In matters of cantonal law, cantonal su-
preme courts have the final say.13 In matters of federal law (including international
law), cantonal courts are, as a rule, the lower-instance courts. This is so because
federal law is usually implemented by way of cantonal administrative decisions to
be challenged before cantonal courts, or is directly adjudicated by cantonal courts
themselves (eg the Federal Civil Code). However, a final appeal is possible before
the FSC. Furthermore, in some cases (‘federal’ crimes, intellectual property, ap-
peals against decisions of the federal administration), the court of first instance is
federal instead of cantonal (Figure 5.2).
9 That has been the case, for instance, of the implementation of the Federal Constitution, Art 121a
(n 5): Véronique Boillet and Francesco Maiani, ‘La “preference indigene light” et sa compatibilité avec
l’Accord sur la libre circulation des personnes’ [2016/17] 37(4) Annuaire du droit de la migration 61–78.
10 BGE 125 II 417.
11 For a good summary, see Federal Council, Suisse– Union européenne, ‘Report of the Federal
Council’ (2010) FF, 2067 and Federal Council, Suisse–Union européenne, ‘Report of the Federal
Council’ (2011) FF, 3401. The ‘Self-Determination Initiative’, which sought to call into question the su-
premacy of international law, was, as noted, rejected in the polls in November 2018 (n 6).
12 BGE 139 I 16, 5.2, 5.3.
13 Of course, in cases where the plaintiff alleges that the application of cantonal law entails violation
of the rights enshrined in federal law (including the Federal Constitution), then the matter becomes one
of federal law.

Tribunal fédéral
Tribunal fédéral de première instance Tribunal cantonal supérieur

(Tribunal administratif fédéral par exemple)
Tribunal cantonal de première instance

(Tribunal de district, d’arrondissement, . . .)
Fig 5.2 Switzerland: Judicial architecture

Source: Prepared by the author from Alain Wurzburger, Le Tribunal fédéral (Schulthess Verlag 2011).
4. The Federal Supreme Court in more detail
As the rest of the chapter focuses on the case law of the FSC, it is useful to provide
more details about it—particularly on its personnel and on its contacts with EU law
and the CJEU.
The top judicature in the country, the FSC, currently comprises thirty-eight
judges. Over the past ten years, it has resolved between 7,242 and 7,811 cases
yearly, ie on average 200 per judge annually.14
The FSC is organized in specialized Divisions—two Public Law Divisions, two
Civil Law Divisions, one Criminal Law Division, and two Social Law Divisions.
Its judges are elected by the parliament. Legal education is not, formally speaking,
a requirement, but in practice is a sine qua non. Indeed, most FSC judges are
former judges of inferior courts or—occasionally—former lawyers or university
professors.
In addition to professional qualifications, election takes into account criteria
of linguistic and regional balance. There are currently twenty-three German-
speaking, twelve French-speaking and three Italian-speaking judges—all of whom
are supposed to be at least active users of a second national language, and passive
users of the third, and most of whom also speak English.
One last important consideration is that elections occur according to an in-
formal ‘quota system’ between political parties. The political profile of individual
judges is therefore much more pronounced and explicit than in the Supreme
Courts of other European states.15
The clerks assisting the FSC judges are, subject to exceptions, Swiss citizens
having a Swiss legal education. A few of them may have studied abroad or spent a
14 These figures are drawn from the Annual Reports of the FSC, available on the webpage <https://
www.bger.ch/ f r/ i ndex/ f ederal/ f ederal- i nherit- t emplate/ f ederal- p ublikationen/ f ederal- p ub-
geschaeftsbericht.htm> accessed 30 April 2020.
15 See <https://www.bger.ch/fr/index/federal/federal-inherit-template/federal-richter.htm> accessed
30 April 2020.

period as interns at the European Court of Human Rights (ECtHR) or at the CJEU,
but the vast majority have received their legal training in Switzerland.
Given that EU law is taught in most Swiss law faculties as a mandatory sub-
ject, one can assume that at least the younger members of the FSC staff have re-
ceived university-level education on the topic. On the other hand, it would seem
that no specialized courses or seminars are organized by the FSC, or have been
since a cycle of seminars that I myself had the honour of presenting together with
Professor Roland Bieber in 2002‒03.
The FSC does not have regular bilateral contacts with the CJEU. There is only a
trace of an official visit dating back to 2007.16 This does not rule out informal visits
and contacts between judges. Furthermore, the FSC is a member of several associ-
ations of judicial bodies, such as the Association des Cours Constitutionnelles ayant
en Partage l’Usage du Français (ACCPUF), and has ‘guest’ status in Association of
the Councils of State and Supreme Administrative Jurisdictions of the EU, an as-
sociation composed of the CJEU itself and of the Councils of State or the supreme
administrative jurisdictions of the Member States. One may therefore assume that
the FSC has regular opportunities to exchange views with its homologues and with
the CJEU itself on CJEU case law, for example.
5. The publication strategy of the FSC
Judgments of the FSC are rendered in the language of the case (German, French, or
Italian, as the case may be) and are not officially translated. The cases published in
the official reports are numbered according to a specific format composed of an ab-
breviation and three numbers, for example BGE 136 II 5. The key is the following:
• BGE stands for Bundesgerichtsentscheide (in French: ATF; Italian: DTF).

• The first number is the volume number, indirectly indicating the year
(vol 1 = 1875; vol 143 = 2017).
• The roman number roughly indicates the area of law (I = constitutional law;
II = administrative law and public international law; III = civil law; IV = criminal
law; V = social law).
• The last number is the page number.
The structure of the judiciary—and the fact that in Switzerland decisions are pub-
lished in three languages and not officially translated—has important implications
for the implementation of the research design devised by Arie Reich and Hans
Micklitz, spelt out below (see section E.1).
16 See CJEU Press Release no 24/07 of 15 March 2007.

6. Interpretive approaches of the FSC, including to foreign

legal materials
In interpreting domestic law, Swiss judges will apply the usual hermeneutical ap-
proaches of literal, systematic, teleological, and historical interpretation. According
to what the FSC calls its ‘pragmatic methodological pluralism’, none of these
methods of interpretation takes precedence over the others, and the task of the
judge is to combine them in such a way as to best illuminate the meaning of the law
in each case.17 As a consequence, while the letter of the law constitutes the starting
point of interpretation, deviations from it are not excluded when supported by,
for example, teleological or systematic elements. In terms of international law, of
course, the reference is Article 31 of the Vienna Convention on the Law of Treaties,
as well as any special hermeneutical rule that may be stipulated by the international
agreement involved.18
Use of foreign legal materials is not exceptional. Indeed, Swiss judges have a
long-standing tradition of referring to foreign legal materials in their decisions.
Such references have always been considered to be the expression of a free, ‘com-
parative’ exercise undertaken by the judge to nourish their reflection on the
problem at hand, no more and no less.19 The fact that foreign law exerted influence
on a certain piece of legislation—mostly German or French law in previous eras,
rather more EU or US law nowadays—would make such references more natural
and frequent.20 When dealing with international law, Swiss judges may also refer to
the practice of the other parties.
As a general rule, however, consideration of foreign legal materials is not re-
garded as mandatory. The exceptions are linked, precisely, to what is called ‘euro-
compatible’ interpretation (see section D).
The judgments of the FSC are not accompanied by separate opinions. The
style of reasoning seems to occupy a happy medium between the lengthy and at
times extremely doctrinal judgments of the German Bundesverfassungsgericht
and the lapidary style of French judges. FSC judgments are often discursive
and the relevant legal literature is routinely quoted and discussed. This in-
cludes foreign literature, in turn including literature on EU law. This may con-
stitute an indirect vehicle for the ‘import’ of ideas and conceptions from other
legal systems.
17 See eg BGE 131 III 623.

18 See eg BGE 130 II 113, 6.1.
19 On the traditional use of foreign legal materials by Swiss judges, see Alexandra Gerber, ‘Der
Einfluss des ausländischen Rechts in der Rechtsprehung des Bundesgerichts’ (1992) 20 Perméabilité des
orders juridiques (Publications de l’ISDC)141–63; see also Alexandra Gerber, ‘WERRO La jurispru-
dence et le droit comparé’ (1992) 20 Perméabilité des orders juridiques (Publications de l’ISDC)165–72.
20 Thier (n 4) 59.

C. Relations between Switzerland and the EU and

the Approximation of Swiss Law to EU Law
1. General aspects
Since its rejection of the EEA Agreement, Switzerland has been something of a
‘special case’ (Sonderfall) in the Western European context.21 On the one hand, it
is the non-EU state that is most closely integrated with (and dependent on) the EU
economy, ecology, and demography. For instance, it is the Union’s third trading
partner worldwide, behind the United States and China but far beyond Norway,
Russia, or Turkey. On the other hand, it is the only sizeable Western European
state that is neither a member of the EU nor a member of the European Economic
Area (EEA).
Internal political constraints—with approximation to the EU being a particu-
larly contentious and polarizing issue in the domestic arena—have made accession
to either the EU or the EEA impossible in the past and for the foreseeable future.
In order to achieve integration and cooperation, Switzerland has therefore relied
on sector-specific agreements and on the unilateral approximation of its laws and
policies.22
This model of integration—the Swiss ‘bilateral way’—is today at a crossroads.
Since 2008, the EU has suspended the conclusion of any new agreements ex-
panding Switzerland’s participation in the internal market until a global institu-
tional settlement is found.23 Negotiations have been ongoing since 2014 and a
late-2018 Draft Framework Agreement has been disseminated for internal con-
sultations by the Swiss Government.24 However, the prospects that Switzerland
will actually sign and ratify the Agreement are uncertain, while the EU has made
clear that a rejection might have consequences for the ‘sustainability and further
development’ of Swiss–EU relations.25
That said, current turbulences are not our concern. For our purposes, what has
been achieved in terms of Europeanization until now matters far more.
From the 1960s, and into the late 1980s, a few agreements were concluded, in-
cluding the all-important (albeit rudimentary) 1972 Free Trade Agreement (FTA).
21 Dieter Freiburghaus, Königsweg oder Sackgasse? Schweizerische Europapolitik von 1945 bis heute
(2nd edn, Nzz Libro 2015); Clive H Church (ed), Switzerland and the European Union (Routledge 2007).
22 Matthias Oesch, Switzerland and the European Union (Dike Verlag AG 2008) 13ff.
23 For an analysis of the ‘institutional questions’ raised by the EU in a context broader than Swiss-EU
relations, see Christa Tobler, ‘One of Many Challenges after Brexit’ (2016) 23(4) MJECL 575‒94.
24 See <www.eda.admin.ch/dea/fr/home/verhandlungen-offene-themen/verhandlungen/institutionelles-
abkommen.html> accessed 30 April 2020. For analysis, see Astrid Epiney, ‘Der Entworf des Institutionellen
Abkommens Schweiz—EU’ (2018) Jusletter, 17 December.
25 See Council conclusions on EU relations with the Swiss Confederation of 19 February 2019, para 9
<www.consilium.europa.eu/en/press/press-releases/2019/02/19/council-conclusions-on-eu-relations-
with-the-swiss-confederation/> accessed 30 April 2020.

Under such ‘first-generation’ agreements, the approximation of Swiss Law to EEC

Law was very limited.
This changed with the popular rejection of the EEA Agreement on 6 December
1992. The government, stuck between the integration needs of the economy and
popular hostility against visible limitations to sovereignty, relaunched the two trad-
itional elements of the Swiss European policy and decided to take them to a completely
different level: on the one hand, Switzerland would try to conclude sector-specific
agreements with the EU in a wide range of sectors; on the other hand, a systematic ef-
fort would be undertaken to align domestic legislation with the EU acquis.26
2. The expanding network of agreements between

Switzerland and the EU
Starting in 1993, the EU and Switzerland have been involved in a continuous cycle
of exploratory talks, (difficult) negotiations, and ratification of the results thereof.27
The first round of negotiations started at the initiative of the Swiss Government,
which was anxious to offset the negative consequences of the country’s self-exclusion
from the ‘enlarged internal market’ of the EEA. Its themes were therefore essentially,
though not exclusively, economic.28 The second round of negotiations was opened
instead at the request of the EU, which was eager to see its own Directive on the
taxation of savings income applied by selected third states, including Switzerland.
Switzerland accepted, but requested parallel negotiations on some ‘left-overs’ from
the first round, as well as on association with implementation of the Schengen and
Dublin acquis—a step that, it may be noted in passing, marked an expansion of
Swiss–EU relationships from the essentially economic to the broadly political. In
both rounds, negotiations were characterized by issue linkages and multilevel games.
One of the main threads of this complex texture, and the one that interests us here,
was the confrontation between the competing values of ‘uniformity’ and ‘autonomy’.
The EU maintained from the outset that advanced cooperation and integration
would only be on offer if based on application of the acquis. As the Commission
pointed out in 1993:29
Any agreement would need to deal satisfactorily with the implementation of the
Community acquis and the need for Switzerland to accept the discipline involved.
26 See Communication of the Federal Council on the Plan following the Rejection of the EEA, FF
1993 I 757.
27 For an overview see Oesch (n 22) 19ff.
28 The negotiations also covered ‘non- market’ items, such as the free movement of persons not
pursuing an economic activity, as well as scientific and technological cooperation.
29 European Commission, Communication on Future Relations with Switzerland, COM (93) 486,
para 13.

This requirement responded to different rationales. In part, requiring Switzerland

to implement the acquis was linked to the object and goals of each prospective
agreement. In some matters, regulatory convergence was the goal of the negoti-
ation for the EU.30 In others, the EU saw it as a necessary precondition for the form
of cooperation that was envisaged.31 At the same time, the Union’s insistence on
acceptance of the acquis also had much to do with broader political concerns, and
more precisely with the question of fitting the ‘Swiss piece’ into the wider jigsaw of
the Union’s external relations.32
The Swiss government, for its part, was not fundamentally opposed to cooper-
ating on the basis of the acquis. Anticipating strong domestic resistance, however,
it objected to the application of some aspects of the acquis, such as the free move-
ment of persons. Moreover, and again in view of domestic hostility to losses of sov-
ereignty, it strove to negotiate less-than-full obligations to transpose the acquis.
In this regard, the ‘static’ character of the prospective agreements was a non-
negotiable red line: any obligation to apply the acquis would only refer to the ‘pre-
signature’ acquis, while Switzerland would retain control of acceptance or refusal
of the ‘post-signature’ acquis.
The negotiations eventually produced sixteen ‘sectoral’ agreements. The first
package of seven, including the all-important Agreement on the Free Movement
of Persons and the two agreements on transport services, was signed in 1999 and
entered into force in 2002.33 A second package of nine was signed in 2004 and
entered into force gradually in the following years.34 Further important agree-
ments have been concluded since, including the revised Lugano Convention on
jurisdiction and the recognition and enforcement of judgments in civil and com-
mercial matters, but as stated in section C.1, further progress in market integra-
tion is for the moment suspended until the entry into force of a new institutional
settlement.
Taken together, the agreements reflect the parties’ competing agendas on the
issue of regulatory convergence. Where the EU sought approximation based on the
acquis, namely in the sectors of free movement of persons, air and land transport,
30 For instance, regarding taxation of savings income, as already noted.

31 For instance, as a way to ensure a level playing field, while including some Swiss industries in the
internal market, or as a way to ensure homogeneous controls at the external borders before admitting
Switzerland to the Schengen ‘club’.
32 In particular, the EU was conscious that granting Switzerland full access to the internal market or
EC programmes à la carte, or without requiring full implementation of the acquis, might undermine
EEA solidarity (European Commission, (n 29) para 10). Likewise, in areas where parallel bilateral ne-
gotiations were ongoing or had been concluded with other third countries (eg on taxation of savings or
Schengen/Dublin), the EU was reluctant to grant privileged treatment to Switzerland.
33 Agreements on the Free Movement of Persons, Air Transport, Land Transport, Trade in
Agricultural Products, Mutual Recognition in Relation to Conformity Assessment, Government

Procurement, and Scientific and Technological Cooperation OJ 2002 L114. For analysis, see Daniel
Felder and Christine Kaddous (eds), Accords bilatéraux Suisse—UE (Schulthess Verlag 1999).
34 On the ‘Bilateral II Agreements’ see Christine Kaddous and Jametti Greiner (eds), Accords
bilatéraux II Suisse–UE et autres accords récents (Helbing and Lichtenhahn 2005).

taxation, security (Schengen), asylum (Dublin), and judicial cooperation (Lugano),

it succeeded. Nonetheless, Swiss negotiators managed to obtain some carve-outs,35
as well as softer versions of the obligation to apply the relevant acquis. They also
managed to lock in the ‘static’ character of the agreements. As noted, this means
that ‘updating’ the agreements to the current state of EU law requires Switzerland’s
assent, which Switzerland is free to withhold—with the partial exception of the
Schengen/Dublin Agreements and of the so-called ‘24 hours Agreement’.36
Beyond that, each agreement defines in its own terms the exact manner and
form of acquis implementation, as shown by the following examples.
The Agreement on Air Transport (AAT) is in a way the most linear instrument of
legal Europeanization. Its ‘General provisions’ reproduce word for word the provi-
sions of the EC Treaty relating to non-discrimination, freedom of establishment, and
competition. Its annex enumerates all the regulations and directives that Switzerland
is required to implement—basically, the whole air transport acquis. This operation of
incorporation (textual and by reference) is perfected through Article 1(2), which reads:
Insofar as they are identical in substance to corresponding rules of the EC Treaty

and to acts adopted in application of that Treaty, those provisions shall, in their
implementation and application, be interpreted in conformity with the relevant
rulings and decisions of the Court of Justice and the Commission of the European
Communities given prior to the date of signature of this Agreement [ . . . ].
The Agreement on the Free Movement of Persons (AFMP) replicates the same
scheme of textual incorporation of, and references to, EU secondary legislation.
However, the parties are not required to literally apply the EU legislation referred
to, but rather to ensure the application of ‘equivalent rights and obligations’ (AFMP,
Art 16(1)). Moreover, the pre-signature case law of the Court of Justice must be
‘taken into account’ (AFMP, Art 16(2)), rather than conformed to. Somewhat con-
fusingly, a joint declaration enjoins the parties to ‘apply the acquis communautaire
[ . . . ] in accordance with the Agreement’.
Further down the line of Europeanization, we find the Land Transport
Agreement (LTA), which again contains references to EU legislation, with an ob-
ligation to apply them by equivalence (Art 52(6)), as well as provisions replicating
EU law ‘originals’. However, no reference is made to the case law of the CJEU.
The revised Lugano Convention follows a different model still. The Lugano
Convention is a multilateral treaty aiming to extend to the four European
Free Trade Association (EFTA) states the intra-EU system of recognition and
35 See René Schwok, ‘Un rapprochement . . . qui éloigne la Suisse d’une adhesion’ [2004] RMCUE
645–50.
36 According to these Agreements, Switzerland is at liberty to accept or to refuse the post-signature
acquis. However, failure to accept the new acquis entails in principle the suspension or termination of
the Agreements.

enforcement of judicial decisions in civil and commercial matters. Protocol no 2 to

the Convention requires that:
[A]‌ny court applying and interpreting the Convention [ . . . ] pay due account to
the principles laid down by any relevant decision concerning the provision(s)
concerned or any similar provision(s) of the 1988 Lugano Convention and the
[EU Law] instruments referred to in Article 64(1) of the Convention rendered by
the courts of the States bound by the Convention and by the Court of Justice of the
European Communities.
The Agreements associating Switzerland to the implementation of Schengen and

Dublin (respectively, AAS and AAD), my last example, are constructed differently.
Both Agreements stipulate clearly that Switzerland is required to ‘accept and apply’ the
relevant EC and EU acquis, and that interpretation of the acquis should be ‘as homoge-
neous as possible’. They do not lay down an explicit obligation for the Swiss authorities
to take into account the case law of the Court. Nonetheless, they institute exchange of
information and reporting, and provide for termination in case of ‘substantial diver-
gences’ in the application of the acquis, unless the parties can find a political solution.
3. The unilateral alignment of Swiss law with EU

law: ‘autonomous implementation’ and ‘inspiration’
In 1988, the Federal Council announced that it would pursue regulatory alignment
with EU standards in fields where divergences of legislation might have cross-
border repercussions (eg in the area of technical standards). This ‘autonomous
adaptation’ of Swiss law to EU law (autonomer Nachvollzug) remained a relatively
rare occurrence until 1992.37
Starting from 1993, by contrast, ‘euro-compatibility’ was seen as a general guide-
line for socio-economic legislation, and the guideline has been consistently imple-
mented in later years. The process of systematic alignment started with the Swisslex
programme of legislative reform—a suitably renamed and reformatted version of
the legislative package prepared in view of EEA accession (Eurolex). Thereafter, it
continued with such vigour that in 1999 the Federal Council observed:38
In practice, Parliament and the Federal Council only exceptionally adopt legal
acts that are not [euro-]compatible.
37 See Carl Baudenbacher, ‘Zum Nachvollzug Europäischen Rechts in der Schweiz’ (1992) 27(3)
Europarecht 309–20.
38 Federal Council, Suisse– Union européenne, ‘Rapport sur l’intégration’ (3 February 1999) FF,
3600, 3634: ‘Dans la pratique, le Parlement et le Conseil fédéral n’adoptent qu’exceptionnellement des
actes juridiques qui ne sont pas [euro-]compatibles.’

This was not merely a quantitative change. The rationales behind the quest for
‘euro-compatibility’ had also expanded and diversified. In the 1988 philosophy, the
goals of autonomous adaptation were essentially: (i) to minimize obstacles to trade;
and (ii) to facilitate future negotiations with the EU. These rationales were main-
tained, strengthened, and expanded. Henceforth, autonomer Nachvollzug would
also serve the purpose of reducing distortions of competition, including when such
distortions would have actually played to the advantage of Swiss industry.39 This
accounts for the marked expansion of Europeanization observed in the 1990s—
from technical legislation to economic law at large.40
Unilateral Europeanization, moreover, could no longer be identified with au-
tonomous adaptation in the strict sense—that is, a legislative policy aiming specific-
ally at euro-compatibility. EU law also became a major source of inspiration in the
logic of lesson drawing. Conceptually, of course, this was nothing new.41 However,
the influence of EU law became particularly strong during the 1990s. For example,
in 1996 the Swiss Parliament adopted the Federal Statute on the Swiss Internal
Market.42 This law explicitly ‘transposed’ the Cassis de Dijon principle into Swiss
law with the aim of reducing fragmentation of the Swiss market along cantonal
lines: a classic EU solution for a purely Swiss problem.
Another important piece of market regulation, deeply influenced by EU com-
petition law and straddling the divide between autonomer Nachvollzug proper and
inspiration, was the Federal Statute on Cartels of 1995.43
Europeanization of the legislative process must also be mentioned here. What
had started as a voluntary practice for selected areas—the practice of including
in legislative proposals an analysis of their ‘euro-compatibility’—has become a
general obligation by virtue of Article 141 of the Law on the Federal Parliament.44
Before proposing and passing new legislation, the Federal Government and the
Federal Parliament are now required to assess its ‘euro-compatibility’ on a routine
basis, even in non-economic areas such as immigration law.45
***
39 See Federal Council, Suisse–Union européenne, ‘Message sur le programme consécutif au rejet de
l’Accord EEE’ (1993) FF I, 757, 762.

40 See Roger Mallepell, ‘Der Einfluss des Gemeinschaftsrechts auf die schweizerische Gesetzgebung
1993–1995’ (1999) Swiss Papers on European Integration, paper no 21. For an overview of more recent
practice, see Christian Kohler, ‘Influences du droit européen sur la legislation Suisse: analyse des années
2004 à 2007’ (2009) Jusletter, 31 August.
41 As noted in section B.6 above, German law was a major source of inspiration for the drafters of the
Swiss civil code.

42 Classified Compilation of Federal Law, 943.02.
43 ibid 251. See also the Federal Council, Suisse– Union européenne, ‘Federal Council Message’
(1994) FF, 472.
44 Classified Compilation of Federal Law, 171.10.
45 See eg Federal Council, Suisse–Union européenne, ‘Message concernant la loi sur les étrangers’
(2002) FF, 3469, para 5.

Be it out of international obligation, or because of legislative policy, Swiss law is

nowadays intensely ‘Europeanized’ in a large number of sectors. Granted, many
areas of law fall outside the sphere of EU competence and influence, even in the
Member States, and the same is a fortiori true of Switzerland. Public education,
large parts of civil and criminal law, land planning, and others are only tangentially
affected by EU law. The list of Europeanized sectors is, however, impressive. It en-
compasses first and foremost ‘economic’ law at large: technical legislation, trade
rules, consumer protection, aspects of labour and social law, indirect taxation,
transport and public utilities, intellectual property, media law, professional regula-
tions, and the like. Private international law and migration law in all its aspects are
also deeply Europeanized. The same goes for data protection law. Indeed, in part
because of contractual obligations flowing from the Schengen association, and in
part to facilitate the free movement of personal data between Switzerland and the
EU, Swiss legislation is undergoing a thorough reform that aims inter alia to fur-
ther approximate it to relevant EU legislation and jurisprudence.46 Newer areas are
also coming under EU law influence (eg some aspects of criminal law).
The legislative policies of euro-compatibility are often reflected in the activities
of independent regulators and authorities. For instance, it is not unusual for the
Swiss Competition Commission (COMCO) to rely on European Commission
communications in its own documents implementing the Federal Statute on
Cartels.47
Indeed, a pendant of large-scale regulatory adaptation is the multifaceted prac-
tice of ‘euro-compatible’ interpretation; that is, interpretation of ‘Europeanized’
provisions in the light of relevant CJEU precedent. This will now be examined
through the prism of FSC case law.
D. The Evolving Doctrines of ‘Euro-Compatible’

Interpretation through the Case Law of the FSC
1. Introduction: an unfolding history
The late Olivier Jacot-Guillarmod, at the time a judge at the FSC, wrote in 1999
about the ‘traces’ of EC law in the case law of the Supreme Court.48 Indeed, up
46 See Astrid Epiney and Daniela Nüesch (eds), Die Revision des Datenschutzes in Europa und die
Schweiz (Schulthess Verlag 2016); FREI, ‘Die Revision des Datenschutzgesetzes aus europarechtlicher
Sicht’ (2018) Jusletter, 17 September.
47 See eg Swiss Competition Commission, ‘Note explicative relative àla Communication concernant
l’appréciation des accords verticaux’ (12 June 2017) para 2 <www.weko.admin.ch/weko/fr/home/docu-

mentation/communications---n otes-explicatives.html> accessed 30 April 2020.
48 Olivier Jacot-Guillarmod, ‘Traces de droit communautaire dans la jurisprudence du Tribunal
fédéral suisse’ in Rodriguez Iglesias, Romain Schintgen, and Charles Elsen (eds), Mélanges en hommage
à Fernand Schockweiler (Nomos Verlagsgesellschaft 1999) 213‒32.

until then FSC references to the CJEU were few and far between (for statistics, see
section E below). And for the most part, they were merely comparative references.
For instance, in adjudicating the right of non-discrimination of confederates be-
fore the authorities of other cantons, the FSC drew in passing a parallel to EU
internal market law.49 Similarly, in adjudicating the highly controversial issue of
positive discrimination in favour of women, the FSC embarked on a comparative
tour and, in this context, relied inter alia on the Kalanke judgment.50
Adjudicating cases under the FTA of 1972 (the only important agreement in
force up until then), the FSC made a few references to the CJEU. Remarkably, the
first such reference was made in order to deny that Swiss judges had any obligation
to take into account CJEU precedent. In ‘OMO’,51 the claimant sought to overturn
a first-instance injunction based on national trademark law by invoking the FTA. It
argued that such an injunction violated the prohibition of measures having equiva-
lent effect to quantitative restrictions as interpreted in the case law of the CJEU on
free movement of goods. The FSC underscored the systematic differences existing
between the Rome Treaty and the FTA, denied that Swiss judges had to transpose
CJEU case law on the provisions of the Rome Treaty to similarly worded FTA pro-
visions, and rejected the claimant’s plea.52 In a later case on rules of origin, the
FSC (marginally) softened its stance by showing that it would take into account—
though not be bound by—CJEU precedent on the FTA itself.53
The most committing of the early references were made in the context of the
(1988) Lugano Convention, which included language similar to that of the current
Convention quoted in section C.2 above. In a remarkable judgment, the FSC held
itself duty-bound to follow the interpretation given by the CJEU on parallel EU
provisions, its reservations on said interpretation notwithstanding.54
Save for the last case mentioned, early references were not very sophisticated.
The FSC seldom elaborated on the reasons leading it to consider CJEU precedent,
or on the authority it attached thereto. When something was said to this effect, it
was mostly non-committal.
It has taken a long time and much argumentative effort for doctrines of euro-
compatibility to mature. This process has progressed in parallel with the growing
influence of EU law on Swiss law. On the one hand, provisions requiring explicitly
that CJEU precedent be taken into account have multiplied. On the other hand, the
49 BGE 122 I 109.

50 BGE 123 I 152; CJEU Case C-450/93 Kalanke [1995] (ECLI:EU:C:1995:322).
51 BGE 105 II 49.
52 ibid 3. For analysis, see Thomas Cottier and Nicolas Diebold, ‘Warenverkehr und Freizügigkeit
in der Rechtsprechung des Bundesgerichts zu den Bilateralen Abkommen—Zur Anwendung und

Auslegung von nachvollzogenem Recht und Staatsverträgen unterschiedlicher Generationen’ (2009)
Jusletter, 2 February.
53 BGE 114 IB 168.
54 BGE 124 III 188.

sheer mass of ‘Europeanized’ law has made the once-attractive option of methodo-
logical vagueness less sustainable.
It should be noted that the process is still in progress. FSC doctrines of euro-
compatibility have so far tended to be agreement-specific or statute-specific, or at
the very least specific to various fields of law. Overarching principles (or tenden-
cies) are emerging, but there is still some room for differentiation and contestation,
even within the same Division of the FSC.
What follows is a brief account of the main doctrines that have emerged, both in
the context of ‘bilaterales Recht’55 and in the context of unilateral approximation of
Swiss law to EU law.
2. Doctrines relating to sectoral agreements: the case

of the AFMP
The agreement that has given rise to the most litigation, to the most references to
CJEU law, and to the most refined doctrines of euro-compatible interpretation, is
by far the AFMP.
As noted above in section C.2, Article 16(2) AFMP makes it mandatory to ‘take
into account’ the relevant case law of the CJEU rendered before signature of the
agreement, whenever notions of EU law are used in the agreement. Post-signature
case law must be exchanged between the Parties so that the mixed committee may
‘determine [its] implications’—which it has seldom, if ever, done.
Early on, the FSC ruled that pre-signature and relevant case law was essentially
binding on the Swiss interpreter.56 This left two fairly complex points to be re-
solved: (i) when CJEU case law is ‘relevant’ for the purposes of Article 16 AFMP;
(ii) what the domestic authorities are to make of ‘relevant’, post-signature CJEU
case law.57
As for the first question, clearly CJEU precedent will not enter into consider-
ation unless it refers to EU provisions that are somehow incorporated in the agree-
ment. Even in such cases, however, it may not be relevant. In this respect, the FSC
applied a doctrine elaborated decades earlier by the CJEU itself on the interpret-
ation of international agreements modelled on EU law (Polydor). According to
the Polydor principle (itself a fairly straightforward application of Article 31 of the
Vienna Convention, and a key tenet in the interpretation of ‘bilateral law’), the fact
that an agreement concluded by the EU with a third state uses the same language
as a parallel EU provision is not in itself a sufficient reason to interpret it in the
55 The expression is borrowed from Christa Tobler and Jacques Beglinger, Grundzüge des bilateralen
(Wirtschafts) Rechts (Dike Verlag AG 2012).

56 See a contrario BGE 130 II 1, 3.5; see also BGE 136 II 5, 3.4.
57 For an early and illuminating discussion, see Astrid Epiney, ‘Zur Bedeutung der Rechtsprechung
des EuGH für Anwendung und Auslegung des Personenfrei zügigkeitsabkommen’ [2005] ZBJV 1.

same way as the EU provision.58 The decision on whether to ‘transpose’, say, CJEU
internal market case law to parallel provisions in an FTA requires consideration of
the FTA’s overall goals and systems, and of the extent to which they coincide with
those of the Rome Treaty.
Before Polydor was rendered, the FSC applied the same principle in OMO. And
without actually quoting Polydor or OMO, it followed the same approach in the
context of Article 16 AFMP. It ruled that CJEU precedent on EU provisions incorp-
orated in the Agreement would not be considered ‘relevant’ whenever it relied on
integration concepts going beyond the scope and objectives of the Agreement itself
(such as strong interpretations of free movement law explicitly or implicitly prem-
ised on the concept of EU citizenship).59
As for the second question, the FSC was recurrently confronted with parties
invoking ‘post-signature’ CJEU judgments. The letter of Article 16(2) AFMP is
fairly straightforward here: there is no obligation whatsoever to take such judg-
ments into account. Still, this hard-and-fast distinction between ‘pre-signature’
and ‘post-signature’ case law has serious drawbacks. On the one hand, it is quite
unnatural: subsequent judgments may develop the findings of earlier ones, or
bring important clarifications which may be useful to the Swiss judge. On the other
hand, denying all relevance to ‘post’-judgments makes it impossible, in the long
haul, to realize free movement among the parties ‘on the basis of the rules applying
in the European [Union]’ (AFMP preamble). Indeed, it would lead eventually to a
situation where ‘Swiss–EU free movement’ would bear little resemblance to ‘EU
free movement’.
The initial stance of the FSC was to sweep methodological questions conveni-
ently under the rug of judicial discretion. It claimed for itself full discretion in
taking ‘post-signature’ judgments into account, hinted that it would do so, espe-
cially in cases where ‘post-signature’ judgments built over ‘pre-signature’ case law,
but refrained from stating any rule in this regard.60 This had the advantage of flexi-
bility, but created considerable legal uncertainty.
Eventually, this position entangled the FSC in difficult case-by-case determinations
and contradictions.61 In Basso,62 the FSC based itself on Akrich,63 a ‘post-signature’
judgment departing strongly from ‘pre-signature’ precedent, so as to be able to re-
interpret in a much more restrictive sense the family reunification provisions of
the AFMP. Almost immediately, the CJEU started distancing itself from Akrich.64
58 CJEU Case 270/ 80 Polydor [1982] (ECLI:EU:C:1982:43). See also Christa Tobler, ‘Die EuGH-
Entscheidung Grimme—Die Wiederkehr von Polydor und die Grenze des bilateralen Rechts’ [2009/10]
Annuaire Suisse de droit européen 369–84.
59 BGE 130 II 113, 6.2.
60 ibid 5.2.
61 For a fuller account of the story recounted here in brief, see Francesco Maiani, ‘La Saga Metock’
(2011) I Revue de droit Suisse 27–53.

62 ibid.
63 CJEU Case C-109/01 Akrich [2003] (ECLI:EU:C:2003:491).
64 CJEU Case C-1/05 Jia [2007] (ECLI:EU:C:2007:1).

At this stage, exploiting the ambiguity of the CJEU’s own position, the FSC could
still hold on to Akrich and Basso.65 When the CJEU fully overturned Akrich in
Metock,66 however, this became impossible: how could it be argued that Akrich
should be taken on board to interpret the AFMP, but that Metock—another ‘post-
signature’ judgment intervening exactly on the same point of law, and marking a
return to the ‘pre-signature’ interpretation of EU Law—should not?
On this occasion, the FSC not only revised its position on family reunification,
but also stated a more general principle:67
In order not to endanger the treaty objective of parallel legal rules, the Federal
Supreme Court will take into account post-signature case law appropriately. [ . . . ]
Since it is not for the CJEU to decide on the interpretation of the Agreement for
Switzerland, the Federal Supreme Court is not precluded from following a dif-
ferent interpretation of the Agreement when there are serious grounds for this.
In light of the goal of legal parallelism pursued by the Agreement, the Supreme
Court will not take this course lightly.
Thus, for the sake of parallelism (and of legal certainty) the Court eventually aban-
doned the practically unsustainable distinction between ‘pre-signature’ and ‘post-
signature’ case law and transformed a ‘static’ rule of conform interpretation into
what is to all intents and purposes a ‘dynamic’ rule.
Since then, the FSC has constantly followed this doctrine,68 and found ‘serious
grounds’ for deviating from CJEU case law only in fairly specific circumstances.
In particular, and quite understandably, the FSC refuses to follow the CJEU when
doing so would mean disregarding derogations from the acquis that have been spe-
cifically agreed by the parties in the Agreements.69
While it has not formally transposed it to any other agreement, the FSC has
widely used the doctrine just recalled as a general template. Indeed, it has applied
similar ideas in the context of other agreements despite the fact that these lack ex-
plicit interpretive clauses or include vaguer provisions. The general concept that
the FSC appears to follow is that of a (quasi-)obligation to follow CJEU precedent,
save where there are ‘serious grounds’ speaking against such a course.70
However, there are still areas where the FSC places more emphasis on its own in-
terpretive autonomy. The case law concerning the 1972 FTA is a case in point. Even
though it has been softened by subsequent case law to the effect that CJEU case law
65 BGE 134 II 10.

66 CJEU Case C-127/08 Metock [2008] (ECLI:EU:C:2008:449).
67 BGE 136 II 5, 3.4.
68 For a reaffirmation, see among others BGE 142 II 35, 3.1.
69 See eg BGE 142 V 2, 6.
70 See eg concerning the Schengen Association Agreement, the unpublished judgment of 24 January
2013, 6B_196/2012, indirectly recalled in BGE 143 IV 264, 2.1. See also, concerning the revised Lugano
Convention, BGE 134 III 218, 3.3 and BGE 140 III 320, 6.1.

relating to the internal market is not devoid of all relevance for the interpretation of
the FTA (nicht unbeachtlich),71 the leading case in the area remains the OMO case
examined in section D.1 above.
3. Doctrines relating to unilaterally ‘adapted’ law: from

Acquired Rights to Sat1 and beyond
As with the interpretation of ‘bilateral treaties’, the rules on interpretation of

Europeanized domestic law have progressively gained in sophistication over
the years.
The traditional approach to handling foreign legal materials for the interpret-
ation of domestic law is, as we have seen, that of considering them in the context
of a free comparative exercise (see section B.6 above). The FSC has kept it at that,
even in cases where Swiss law is literally copied from EU law, when this is done in a
purely comparative perspective (as opposed to a compatibility perspective). Thus,
in interpreting the provisions of the Federal Statute on the Swiss Internal Market
(section C.3 above), it ruled explicitly that perusing the case law of the CJEU ‘may
be useful in a comparative perspective’.72
On the other hand, in the 2003 Acquired Rights judgment, the FSC held other-
wise concerning so-called ‘autonomously adapted’ Swiss legislation. The case
hinged on the interpretation of Article 333 of the Code of Obligations (CO),73
reformed in 1994 in order to transpose the 1977 Employees’ Acquired Rights
Directive into Swiss Law.74 Article 333 CO prescribes that whenever an under-
taking is transferred, all employment contracts, as well as the rights and obligations
flowing therefrom, are also automatically transferred to the buyer. The question
submitted to the FSC was whether this rule—or more precisely, the liability in
solidum of the buyer for pre-existing debts arising out of employment contracts—
also applied when the transfer occurred in the context of bankruptcy proceedings.
Note that while the Directive had been reformed in 1998 precisely to exclude such
cases from its scope of application,75 Article 333 CO had not been ‘updated’ at the
time of the judgment and did not address the issue explicitly.76
71 BGE 131 II 271, 10.3.
72 BGE 128 I 295, 4.
73 RS 220.
74 Council Directive 77/187/EEC of 14 February 1977 OJ 1977 L61/26 on the approximation of the
laws of the Member States relating to the safeguarding of employees’ rights in the event of transfer of
undertakings, businesses or parts of businesses.
75 See Directive 98/50/EC of 29 June 1998 OJ 1998 L201/88 amending Directive 77/187/EEC on the
approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the
event of transfer of undertakings, businesses or parts of businesses and Council Directive 2001/23/EC
of 12 March 2001 OJ 2001 L82/16 on the approximation of the laws of the Member States relating to the
safeguarding of employees’ rights in the event of transfer of undertakings, businesses or parts of under-
takings or businesses.
76 See now CO, Art 333b.

The FSC ruled, on the basis of considerations of domestic law, that Article 333
CO did not apply in cases of insolvency.77 It then added obiter:78
Domestic law that has been autonomously adapted to EU law must, in doubt, be
interpreted in a ‘euro-compatible’ manner [ . . . ]. [W]‌hen the Swiss legal order
is adapted to a foreign legal order—here EU law—harmonization must not be
sought only in the formulation of the norm, but also in its interpretation and ap-
plication, insofar as this is permitted by the methods of interpretation that must
be observed under national law. [ . . . ] [T]he interpreter must [not only consider
the legal situation known to the legislator, but] also keep an eye on the subsequent
development of the law with which harmonization is sought.
The language of the Court is bold, inasmuch as it creates ex nihilo a duty of

euro-compatible interpretation, and espouses a dynamic conception of euro-
compatibility—a point that was, clearly, essential in this particular case. At the
same time it is prudent language, inasmuch as it makes clear that euro-compatible
interpretation is a subsidiary means of interpretation that can be trumped by other
considerations (such as text and context), and that there is no strict obligation to
follow subsequent developments of EU law.79
In subsequent years, the FSC has further elaborated on this leading case. Its case
law has not always been entirely consistent. In Métropole Television, it relied on
subsequent EU legislation to solve a contentious issue of Swiss Copyright law, ab-
sent clear legislative intent to make Swiss law compatible with EU law.80 In Sat1,
it emphasized an (arguably minor) divergence between the Swiss provisions on
sponsoring and subsequent EU law, and maintained that the former could not be
interpreted in conformity with the latter81—even though the travaux préparatoires
clearly hinted at euro-compatibility as a means to avoid distortions of competition
to the detriment of Swiss firms.82 The Court went on to note that:
the corrections to the Swiss Broadcasting Act that might be needed [in order to
avoid distortions of competition] cannot be brought by way of interpretation,
77 BGE 129 III 335, 5.

78 ibid 335, 6.
79 For very different readings by two of the authors of the judgment, writing extrajudicially, see Franz
Nyffeler, ‘Die Anwendung autonomy nach vollzogener Normen des EU-Rechts, in Festschrift 100 Jahre
Aargauischer Anwaltsverband’ (Schulthess 2005) 35–55; Hans Peter Walter, ‘Das rechtsvergleichende
Element—zur Auslegung vereinheitlichten, harmonisierten und rezipierten Rechts’ (2007) I Revue de
droit Suisse 259–77.
80 BGE 136 III 335.
81 BGE 134 II 223, 3.4.1.
82 Federal Council, Suisse–Union européenne (2003) FF, 1428, 1444, 1449ff, 1465. In enumerating
the aspects on which it proposed deviations from EU law, the government did not mention the provi-
sions on sponsoring: see ibid, 1473 ff.

since the legislature has very recently decided to maintain the pre-existing Swiss
provisions.83
This last point is of general importance. While it is now well established that euro-
compatible interpretation of ‘autonomously adapted’ legislation is in principle dy-
namic, and may even lead to (or confirm) interpretations contra verba legis, the
FSC refuses to push it to the point of amending legislative provisions, especially
when the Swiss parliament has had the opportunity to perfect their alignment
with EU law but has refrained from doing so.84 Admittedly, the line between ‘re-
interpreting’ a text and amending it may be difficult to draw in some cases.
4. Politics can matter (at times): Swisscom, Publigroupe, and

the competition law roller coaster
An area where evolution has been quite spectacular is competition law. Dealing
with provisions of the Federal Statute on Cartels that were copied almost word for
word from EU law (those prohibiting abuse of a dominant position), the FSC at
first took the surprising position that they did not constitute ‘autonomous adap-
tation’ and thus required no ‘euro-compatible’ interpretation.85 This high-profile
judgment seemed to call into question the consolidated practice followed by the
Swiss COMCO of relying on EU-inspired interpretations of competition law (see
section C.3 above).
One year after this Swisscom judgment, however, the very same Division of the
FSC made a spectacular U-turn in Publigroupe.86 In this case, the plaintiff argued
that those very same provisions of the Federal Statute on Cartels—those prohib-
iting abuse of a dominant position—were too open-ended and therefore contrary
to the principle of legal certainty. Quite disconcertingly, given its prior decision in
Swisscom, the FSC ruled:
Since the Swiss Statute on Cartels is modelled after EU Competition Law [ . . . ] the
practice developed under Art. 102 TFEU must be taken into account [ . . . ]. In this
manner, individuals may already gain knowledge about the content of the norms,
and thus legal security.
To my knowledge, this is the one case where the ‘political composition’ of the
chamber appears to have impacted the outcome. Indeed, while Swisscom was
83 BGE 134 II 223, 4.2.

84 See also BGE 133 III 568, 4.6.
85 BGE 137 II 199.
86 BGE 139 I 72.

decided by a chamber composed by three out of five of the judges elected by the
right-wing and eurosceptic Union démocratique du centre, in Publigroupe one of
them was replaced by a judge elected by the centrist Parti démocrate-chrétien, thus
reversing the ‘political colour’ of the majority of judges.
In a more recent judgment, the FSC has gone a step beyond Publigroupe. It rea-
soned that with the Swiss Statute on Cartels, the legislator aimed at having provi-
sions that were ‘materially identical’ to those of EU competition law. It therefore
ruled that interpretations should be permanently kept parallel, save for diver-
gences justified, for example, by the different structure of the Swiss economy, and
save if EU law would itself evolve to the point of becoming fundamentally different
from the law that the Swiss legislator had taken as a model.87
***
As one can see from the examples given above, the principle whereby ‘adapted’
legislation should fundamentally be interpreted in a ‘euro-compatible’ manner
has gained much ground over the years. There is nonetheless resistance in some
quarters of the FSC. For instance, while there is no doubt that Swiss legislation on
VAT is extensively ‘adapted’ to EU law, FSC case law continues to consider that
CJEU precedent is not a mandatory point of reference, but rather a mere ‘source
of inspiration’.88
E. CJEU References in the Case Law of the FSC: A

Quantitative Analysis
1. Methodological limitations
Ideally, the data presented should be based on comprehensive research of all the
references to the CJEU made by Swiss judges. In the light of the basic features of the
Swiss judicial system presented in sections B.3 and B.4 above, this would involve
repeating the same keyword searches, in several languages, in the three multilin-
gual databases of the federal courts, plus (at least) twenty-six cantonal databases,
some of which are also multilingual, and some of which are designed differently
from the others.
This would have been impractical, and on feasibility grounds the decision was taken
to focus solely on the case law of federal courts. An exploratory search in the database
87 BGE 143 II 297.

88 BGE 138 II 251, 2.5.1; see also BGE 139 II 346, 7.3.4 in fine.

of the FSC in the three national languages gave the result of 2,181 judgments.89
To these, the judgments to be found on the databases of the other federal courts would
have had to be added. The final number of judgments would have been much too high
for the kind of in-depth analysis required by the present project.
With the agreement of the project leaders, it was decided to restrict our re-
search to the published decisions of the FSC (see sections B.2 and B.5 above). The
searches have been performed on the database of the FSC, which includes all its
published decisions since 1957 (in addition to a generous selection of unpublished
judgments).
In the light of the above, our research does not purport to capture in its entirety
the phenomenon of references to CJEU case law by Swiss judges. It does, however,
allow us to capture all ‘important’ cases, and a representative picture cutting across
nearly all areas of law.
On this basis, full-text searches were made in three languages of the ‘published
cases’ databases of the federal courts. We found, selected, examined, and tagged
203 FSC judgments. The following section disaggregates this data.
2. Frequency of references to the CJEU, by year and by legal fields
The first data worth presenting concern the yearly breakdown of CJEU citations
and are summarized in Table 5.1 and Figure 5.3.
As one can observe, the number of citations increased significantly (from al-
most none) towards the end of the 1990s, then again around 2003‒05, and then
after 2011. The overall trend can be readily explained by the fact that the early
and mid-1990s were the first period of intensive Europeanization of domestic
law, and 2002 was the year when the first series of sectoral agreements entered
into force. Factoring in a delay for cases to reach the Supreme Court, the peaks
Table 5.1 Number of cases where CJEU decisions were cited in Switzerland (number
of citations in brackets)
Period 1957–8 7 1988–9 2 1993–9 7 1998–2002 2003–0 7 2008–1 2 2013–1 7 Total
FSC 0 (0) 1 (1) 7 (12) 25 (76) 62 (354) 51 (187) 57 (275) 203 (905)
Source: Author’s own statistical elaboration of judgments downloaded from the website <www.bger.c>
accessed 2 June 2020.
89 While efforts have been made to filter out ‘false positives’ from the list, it is still entirely possible
that a small number of judgments counted in this number might not in reality refer to CJEU case law.

15
10
0
1957
1959
1961
1963
1965
1967
1969
1971
1973
1975
1977
1979
1981
1983
1985
1987
1989
1991
1993
1995
1997
1999
2001
2003
2005
2007
2009
2011
2013
2015
2017
Civil Law Chamber Criminal Law Chamber Public Law Chamber
Social Law Chamber Total Federal Supreme Court
Fig 5.3 Number of cases where CJEU decisions were cited in Switzerland
in the graph above correlate well with these events. Subsequent ebbs and flows
might be due to changes in bilateral law or domestic law generating more liti-
gation in Europeanized areas. This is hypothetical, but it is tempting to see a
relation between the last ‘peak’ in the graph and, on the one hand, the entry into
force of yet more agreements (Schengen, revised Lugano Convention), while on
the other, the entry into force of domestic reforms of dubious compatibility with
pre-existing agreements.90
If considered against all the published decisions in the database (starting in 1957
until our cut-off date of 31 December 2017), the ‘frequency’ of FSC judgments re-
ferring to CJEU case law is little more than 1 per cent. However, measuring the fre-
quency of references since 1957 makes little sense because, as noted above, the first
references date from the 1980s and sustained practice can only be traced back to
1998. If we restrict our analysis to the years 1998‒2017, we find that the CJEU was
cited in 195 published judgments out of 5,667 published judgments included in the
database; that is, in approximately 3.5 per cent of cases. It would be interesting to
have comparative data from EU Member States. At any rate, while referring to the
CJEU has perhaps not become daily routine for the FSC, it is now far from being
exceptional.
If we break down the judgments by (broadly defined) domains, the picture we
get is the following (see Figure 5.4 on the next page)
There are two remarks to be made here.
First, CJEU references are scattered across a broad legal field, but at the same
time they are much more frequent in a handful of legal areas. This helps in putting
90 See eg BGE 139 I 16 and BGE 142 II 35.

25
20
No of citations
15
10
0
ed ort
ur nt
rs
law
law
law
aw
law
law
aw
aw
cia ty
ht
ht
e
so per
e
l
xl
el
th
t
rig
ig
l s em
on
al
al
ic
ity
d
lr
O
ad
Ta
r & pro
tio
an
ur
om
cia ur
Im tal
i
o
tit
Tr
ra
So roc
ct
en
ec
at
on
bo al
pe
ig
oc
ra
n
La ctu
am
ec
p
m
er
nt
pr
ic
Co
lle
nt
nd
ic
Co
bl
al
bl
ei
te
Fu
in
Pu
Pu
In
at
im
iv
Cr
Pr
1957−87 1988−92 1993−97 1998−2002

2003−07 2008−12 2013−17
Fig 5.4 Citations of CJEU decisions in Switzerland according to fields of law

the 3.5 per cent figure given above in perspective: it is a rough average between sec-
tors where the FSC hardly ever refers to the CJEU and sectors where this is much
more frequent—quite possibly, ‘daily routine’.
Second, the results given in Figure 5.4 correlate well with the doctrines of
‘Euro-compatibility’ explained above in section D. Indeed, the areas of law where
CJEU citations are more frequent are those covered by those EU–Switzerland
Agreements that generate significant litigation: the AFMP (immigration law, so-
cial security law) and the Lugano Convention (private international law). The
fact that criminal law comes under the radar after 2008 also seems to be linked
to the entry into force of the Schengen Agreement. The other fields where CJEU
references are frequent (competition law, public economic law, tax law) are those
where domestic legislation has been approximated to EU law. In all of these
areas, as explained above, the applicable hermeneutical principles require that
CJEU case law be taken into account. It is therefore quite natural to find them in
Figure 5.4.
These general findings appear to be confirmed by a more in-depth analysis pre-
sented in section E.3 below.

3. Zooming in: the ‘when’, ‘why’, and ‘what’ of references

to the CJEU
The 203 judgments have been analysed one by one and coded. In this coding ex-
ercise, we have attempted to ascertain more precisely and reliably when and why
the FSC refers to the CJEU, and how much the cited judgments tend to impact the
decisions of the FSC itself.
Concerning the ‘when’ (that is, ‘in what circumstances’), we have subdivided the
judgments according to the Act in relation to which CJEU precedents are invoked.
The results are the following (see Figure 5.5):
• In 139 cases out of 203, the FSC referred to the CJEU while interpreting
EU–Switzerland Agreements: 89 times the FMPA, 43 times the Lugano
Convention, 4 times the Schengen/Dublin Agreements, and once the EU–
Switzerland Procurement Agreement.
• In fifty-three cases, reference to CJEU precedents was made while interpreting
domestic legislation—mostly in ‘Europeanized’ fields (competition, market
access, trademarks and patents, public procurement, VAT, some aspects of so-
cial and consumer law).
• In eleven cases, reference was made to CJEU precedents in interpreting other
international agreements, multilateral (eg the ECHR, the EFTA Convention,
or WTO Agreements) and bilateral (eg agreements with Italy on judicial or
customs cooperation).
11
FMPA
53 Lugano
89 Sch/dub
Procurement
Domestic law
1 Other IAs
4
43
Fig 5.5 Switzerland: Judgments citing CJEU by Act


The second aspect of the coding exercise has been to detect the legal logic presiding
over the reference to the CJEU (‘why’). In this regard, we have classified the refer-
ences into four categories:
a. The FSC explicitly states, or clearly implies, that the reference is made pur-
suant to a (quasi-)obligation. This expression covers both formal obligations,
such as those relating to pre-signature under Article 16 AFMP, and inter-
pretive guidelines that the FSC has set itself, for example in relation to post-
signature case law under the AFMP.
b. The FSC explicitly states, or clearly implies, that the reference is made in a free
comparative perspective; that is, not pursuant to a sense of (quasi-) obligation
to take CJEU precedents into account.91
c. The reference is unexplained, and little can be inferred as to the logic behind it.
d. The FSC cites the CJEU in order to deny, as a matter of principle, that the
latter’s precedents may be invoked to solve the point of law at hand. This in-
cludes cases where the FSC seeks to delimit or qualify otherwise existing
(quasi-)obligations to take such precedents into account.92
I would underscore that, in contrast to the previous coding, this coding includes elem-
ents of subjectivity on the part of the coder. Still, while there may have been a few de-
cisions that were hard to call, and while further refinement and revisions are possible,
I am confident that the results presented below by and large reflect FSC practice.
The total breakdown is reflected in Figure 5.6.
(Quasi-)mandatory references are by far the largest category, followed by com-
parative references. There are a number of inconclusive references, and relatively
few cases where the FSC has denied all relevance (as a matter of principle) to the
CJEU case law invoked before it.
If cross-referencing the categories presented above in Figures 5.5 and 5.6, one
finds a rather strong correlation between the ‘when’ and the ‘why’ of the references.
In the case of EU–Switzerland Agreements, 120 judgments out of 139 belonged
to category (a); that is, obligation or quasi-obligation. This was by far the preva-
lent category (86 per cent). ‘Comparative’ references to CJEU case law were made
in ten judgments, most of them quite old. The references included in five judg-
ments were too unclear or generic (category (c)). Four judgments sought to de-
limit (quasi-)obligations relating to the interpretation of the AFMP or the Lugano
91 I will also include here the very rare cases where Swiss Courts take CJEU rulings into account as
‘subsequent practice’, ie complementary means to interpret multilateral Treaty obligations.

92 There may be cases where the FSC denies all relevance to a specific CJEU precedent, but still ac-
knowledges implicitly or explicitly the relevance of CJEU precedents in general for the legal point at
issue. Such cases are categorized under (a), (b), or (c), as the case may be.

9
10
(Quasi-)obligation
53 Comparative
Unclear
Refusal
131
Fig 5.6 Switzerland: Legal logic behind CJEU references

Convention, while recognizing their existence in principle, and were classified as

category (d).93
As for judgments referring to CJEU case law on issues of domestic law, the preva-
lent category by far was category (b), ‘comparative’ references (thirty-five judgments;
that is, 66 per cent). This included some judgments rendered in fields of ‘autonomous
adaptation’, such as VAT law, where one may have expected more committing cate-
gory (a) references. Such references were found in nine judgments, all dealing with
autonomously adapted legislation such as trademark law, competition law, or aspects
of consumer or social legislation. Five more references were too vague to be conclu-
sive (category (c)). Finally, in four cases, the FSC denied all relevance to the CJEU
cases invoked by the parties before it (category (d)). These are fairly old, and include
the now-superseded Swisscom case discussed in section D.4 above.
Finally, concerning cases relating to international agreements other than those
concluded with the EU, the FSC referred to CJEU case law in several ways. In one
case, it ruled that CJEU case law could be a ‘source of inspiration’ for interpreting
multilateral agreements themselves inspired by EU Law (WTO Agreement on Public
Procurement).94 In another case, it declined to refer to the CJEU precedents before it,
but at the same time it opined that they could if necessary serve as a supplementary
means to interpret the Aarhus Convention, given that CJEU case law is the ‘subsequent
practice’ of a subset of Contracting Parties.95 Both cases have been categorized as (b),
to denote the fact that the FSC recognized that as a matter of methodology, reference
93 For instance in BGE 142 V 2 one of the parties invoked CJEU precedent, but the FSC ruled that it
could not be followed as it directly contradicted a specific rule negotiated between Switzerland and the EU.
94 BGE 141 II 113.
95 ibid 233.

may be had to CJEU case law as a useful reference point for interpreting those treaties.
There were six more category (b) cases, making this category the prevalent one in the
class of cases dealing with other international obligations (eight out of eleven, 73 per
cent). Two category (a) cases refer to provisions of the EFTA Convention that are par-
allel to those of the AFMP, and could equally well be considered two additional AFMP
cases.96 The last case belongs to category (d): the FSC simply ruled that CJEU case law
relevant to the AFMP could not be invoked to interpret a bilateral social security
agreement between Switzerland and a third country.97
All in all, the results presented above confirm that, in the practice of the FSC, the
vast majority of references to the CJEU are made out of (quasi-)obligation—mostly
because they are made while interpreting international agreements that include spe-
cific wording to that effect, but also because such rules are implied (eg Schengen), or
because of judge-made rules of interpretation concerning Europeanized Swiss law.
The above classifications do not address a related but distinct point, namely how
influential the CJEU precedents referred to were in the solution of each case. I have
attempted to ‘grade’ the judgments examined according to a four-tier classification:
1. The CJEU precedent(s) cited had no impact on the solution of the case, in-
cluding because CJEU case law was been deemed not relevant, not decisive,
or because the FSC disagreed with it.
2. The effect of the CJEU precedent on the solution of the case is unclear, or else
the CJEU precedent relates to an entirely marginal point of law.
3. The CJEU is cited with approval as ‘supporting’ authority for an argument al-
ready developed on other bases (ad abundantiam).
4. The CJEU precedent is the argument—or one of the arguments—supporting
the decision on the relevant point of law (ratio decidendi). Nota bene: classi-
fying a CJEU reference as ratio decidendi does not mean that it was the sole
or dominant argument in the judgment. It merely means that, in deciding at
least one of the points of law before it, the FSC quoted the CJEU as the main
authority, or as one of the main authorities, and ruled in agreement with it (or
at least, purported to do so).98
There may be judgments mixing several of these categories (eg following CJEU
case law on some points and deeming CJEU judgments invoked by the parties ir-
relevant).99 In such cases, I have attempted to make a considered judgment on what
references were overall most significant in the case.
96 BGE 132 V 82 and BGE 133 V 137.

97 BGE 142 V 48.
98 The question whether the FSC interpreted and applied CJEU precedent correctly is not one that
has been examined here. The criterion used is whether, implicitly or explicitly, the FSC indicated that it
agreed with the CJEU precedent or (as is more often the case) that it was applying that precedent to the
facts before it.
99 BGE 142 III 466.

More generally, I would suggest that the results of such a coding reflect to a large
extent the subjective reading of the coder, and should be taken with a pinch of salt.
The total breakdown is pictured in Figure 5.7 below.
Just as there is a correlation between the ‘when’ and ‘why’ of references to the
CJEU, there is a correlation between the ‘why’ and the impact of CJEU precedent.
Unsurprisingly, the category (d) cases where the FSC refused as a matter of prin-
ciple to take into account CJEU precedent appear here in the ‘no impact group’.
Consistently with their ‘free’ nature, ‘comparative’ references have impacts ranging
from ‘none’ (seven cases)100 to ‘ratio decidendi’ (nine cases),101 with the most nu-
merous category being ‘supporting authority’ (twenty-eight cases). As for ‘(quasi-)
obligation’ cases, five of them appear in the ‘zero’ group, which is prima facie puz-
zling but is actually easily explained if one looks at each individual case.102 In seven
more cases, the reference seems indecisive, or only relates to minor points. In the
vast majority of cases, however, ‘(quasi-)mandatory’ references involve the use of
CJEU precedent as supporting authority (45 cases out of 131) or as ratio decidendi
(74 cases out of 131) whereby, quite often, CJEU case law is quoted without much
fanfare as a precedent to be simply applied.103
24
20
No impact
84
Indecisive
Supporting
Ratio decidendi
75
Fig 5.7 Switzerland: Influence of CJEU cases on FSC decisions

100 BGE 141 II 233.

101 ibid 113.
102 For instance, in one case, the FSC—while reaffirming an obligation to interpret the provisions
involved in line with relevant CJEU case law—simply considered that the cases cited before it were not
relevant to the point at issue (BGE 143 V 354). In another case, it found that CJEU precedent before it
was in principle to be followed, but was too vague to be of help in resolving the issue at hand (BGE 143
IV 264).
103 For an excellent example, see BGE 140 II 112.

4. The most-cited judgments of the CJEU
The cases that have been cited in the most judgments of the FSC are the following
fourteen:
1. C-413/99 Baumbast (nine judgments)

2. C-85/96 Martínez Sala (seven judgments)
3. C-109/01 Akrich (seven judgments)
4. C-133/78 Gourdain/Nadler (six judgments)
5. C-200/02 Zhu und Chen (five judgments)
6. C-160/96 Molenaar (five judgments)
7. C-406/92 Tatry/Maciej Rataj (five judgments)
8. C-127/08 Metock (five judgments)
9. C-115/81 and 116/81 Adoui and Cornuaille (five judgments)
10. C-30/77 Bouchereau (five judgments)
11. C-348/96 Calfa (five judgments)
12. C-144/86 Gubisch Maschinenfabrik (five judgments)
13. C-370/90 Singh (five judgments)
14. C-279/93 Schumacker (five judgments)
In light of the data presented in Figure 5.5, it is perhaps unsurprising that the
CJEU precedents cited in most judgments relate to free movement of persons or,
to a lesser degree, to the Brussels/Lugano system of judicial cooperation in civil
matters.
F. Concluding Remarks
In the Swiss experience, references to CJEU case law are far from being an excep-
tional event. Even just researching the published case law of the FSCs, the results
number in the hundreds—concentrated for the most part in the past two decades.
While many factors may be at play in the decisions of the FSC to quote or not
to quote the CJEU (the political outlook of judges, their greater or lesser open-
ness to ‘foreign’ law, etc), the main driver of this phenomenon is fairly clear: over
the past twenty-five years, the Swiss legal order has progressively become more
Europeanized, be it because of international obligations to transpose the acquis
or as the result of policies of autonomous adaptation. The case law has followed
suit. Indeed, even though one can find many examples of ‘comparative’ refer-
ences, driven by the pure logic of lesson drawing and inter-judicial dialogue,
the normal case is that Swiss judges refer to the CJEU because this step is func-
tionally required—or even legally mandated—in discharging their basic duty of
interpreting applicable law.

Indeed, the doctrines of ‘euro-compatible’ interpretation—mandated by inter-

national agreements, or developed by the FSC in response to the need for meth-
odological clarity in tackling Europeanized law—reinforce and structure the
practice of referring to CJEU case law. In particular, they provide good keys to
understanding the ‘when’ and ‘why’ of CJEU references; that is, the way in which
they are distributed across the years, fields of law, and the possible legal ration-
ales of references. Furthermore, they are a good predictor of the impact that CJEU
cases may have in individual cases. As one may expect, ‘(quasi-)mandatory’ ref-
erences result in frequent invocation of CJEU precedent as authority, while more
‘comparative’ references tend to have less definite outcomes. Cases rejecting as a
matter of method the relevance of CJEU case law are few and far between in cur-
rent practice, and they reflect the need to delimit the ambit of ‘euro-compatible’
interpretation, rather than a rejection of it.
This is not to say that there are no inconsistencies in the case law. On the con-
trary, over the course of this research several individual judgments have been
found that made a contestable application of the FSC’s own doctrines. Some such
judgments, like Swisscom in section D.4 above, were evidence of how polarizing
the issue of ‘euro-compatible’ interpretation can be within the very same Division
of the FSC. And quite clearly, the predictability and readability of case law would
greatly benefit from a more standardized, less ad hoc approach—at the moment,
various judgments formulate the very same principles and doctrines using a whole
range of different formulas.
Still, the point stands that taken as a whole, the practice of the FSC in this matter
is fairly consistent and logical—more so than the author expected when embarking
on this research.
Further analysis will, of course, be required in order to consolidate and refine
these results, to better trace the evolution of Swiss judicial practice, and to provide
further details, for example, of whether the distinction between pre-signature and
post-signature case law actually has importance in practice.

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5

CJEU Citations in the Case Law of

plained below in section E.1.

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B. Background Information: Switzerland, Its Legal System,

1. The Swiss Confederation and its Constitution

Switzerland is a wealthy country of about 8 million inhabitants.2 It is located in

Introduction to Swiss Law (University of Zurich 2018).

no 101, Art 70 (Federal Constitution).

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Absent a Swiss ‘nation’ in an ethnic sense, Swiss-​ness relates more to a (partly)

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2. The Swiss legal system

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Fig 5.1 Switzerland: Hierarchy of domestic law

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3. The Swiss judicial system

There are twenty-​six cantonal judiciaries in Switzerland (each topped by a cantonal

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Tribunal fédéral de première instance Tribunal cantonal supérieur

Tribunal cantonal de première instance

Fig 5.2 Switzerland: Judicial architecture

4. The Federal Supreme Court in more detail

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5. The publication strategy of the FSC

• BGE stands for Bundesgerichtsentscheide (in French: ATF; Italian: DTF).

16 See CJEU Press Release no 24/​07 of 15 March 2007.

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6. Interpretive approaches of the FSC, including to foreign

17 See eg BGE 131 III 623.

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C. Relations between Switzerland and the EU and

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Under such ‘first-​generation’ agreements, the approximation of Swiss Law to EEC

2. The expanding network of agreements between

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This requirement responded to different rationales. In part, requiring Switzerland

30 For instance, regarding taxation of savings income, as already noted.

Agricultural Products, Mutual Recognition in Relation to Conformity Assessment, Government

bilatéraux II Suisse–​UE et autres accords récents (Helbing and Lichtenhahn 2005).

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taxation, security (Schengen), asylum (Dublin), and judicial cooperation (Lugano),

Insofar as they are identical in substance to corresponding rules of the EC Treaty

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enforcement of judicial decisions in civil and commercial matters. Protocol no 2 to

The Agreements associating Switzerland to the implementation of Schengen and

3. The unilateral alignment of Swiss law with EU

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l’Accord EEE’ (1993) FF I, 757, 762.

Swiss civil code.

(2002) FF, 3469, para 5.

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Be it out of international obligation, or because of legislative policy, Swiss law is

D. The Evolving Doctrines of ‘Euro-​Compatible’

1. Introduction: an unfolding history

l’appréciation des accords verticaux’ (12 June 2017) para 2 <www.weko.admin.ch/​weko/​fr/​home/​docu-

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49 BGE 122 I 109.

in der Rechtsprechung des Bundesgerichts zu den Bilateralen Abkommen—​Zur Anwendung und

Absent a Swiss ‘nation’ in an ethnic sense, Swiss-ness relates more to a (partly)

There are twenty-six cantonal judiciaries in Switzerland (each topped by a cantonal

16 See CJEU Press Release no 24/07 of 15 March 2007.

Under such ‘first-generation’ agreements, the approximation of Swiss Law to EEC

bilatéraux II Suisse–UE et autres accords récents (Helbing and Lichtenhahn 2005).

D. The Evolving Doctrines of ‘Euro-Compatible’

l’appréciation des accords verticaux’ (12 June 2017) para 2 <www.weko.admin.ch/weko/fr/home/docu-

in der Rechtsprechung des Bundesgerichts zu den Bilateralen Abkommen—Zur Anwendung und

(2011) I Revue de droit Suisse 27–53.

Period 1957–8 7 1988–9 2 1993–9 7 1998–2002 2003–0 7 2008–1 2 2013–1 7 Total

4. The most-cited judgments of the CJEU

1. C-413/99 Baumbast (nine judgments)

Indeed, the doctrines of ‘euro-compatible’ interpretation—mandated by inter-